(dissenting).
More constitutional guarantees go here. With the affirmance of this case goes the constitutional guarantee, both state and federal, which preserves to one upon trial in a criminal case the right to be confronted by the witnesses against him (Art. 1, Sec. 19, Const, of Texas, Vernon’s Ann. St., and the Sixth and Fourteenth Amendments to the Federal Constitution).
When such guarantee is destroyed, hearsay evidence is raised to the status of legitimate testimony by and thru which men may be tried and condemned and deprived of their life and liberty.
In this case this appellant has been assessed imprisonment for life in the penitentiary of this state, not because he committed the crime of robbery, as charged, but because he had been twice convicted of felonies in and under the laws of the State of New Mexico.
That appellant was so convicted the state relies solely and alone upon hearsay testimony. Thus hearsay testimony no longer is without probative value but has now been recognized as a medium by and thru which facts are thereby established.
The indictment in this case alleged that on May 12, 1954, Richard Thelton Davis was convicted in San Juan County, New Mexico, of grand larceny, a felony under the laws of that state. The indictment also alleged that on November 7, 1955, Richard Thelton Davis was convicted in Santa Fe County, New Mexico, of “the crime of Breaking and Entering in the Nighttime with Intent to Commit Larceny * * a felony. That those convictions were prior to the primary offense in point of time of commission of the offenses as well as the time of the instant conviction was properly alleged.
To sustain those allegations it was incumbent upon the state not only to show the prior convictions and that they were for felonies but also to identify the appellant as being the person who was so charged, tried, and convicted in the State of New Mexico. Garza v. State, 159 Tex.Cr.R. 234, 262 S.W.2d 722; Angus v. State, 136 Tex.Cr.R. 159, 124 S.W.2d 349; Berthrong v. State, 136 Tex.Cr.R. 160, 124 S.W.2d 379; Walthall v. State, 109 Tex.Cr.R. 26, 2 S.W.2d 442.
As was said in the Walthall case, it was imperative that the state establish the identity of the accused as the person who had been convicted prior to the instant conviction. This rule was followed in the Berthrong case, where the prior conviction was alleged to have occurred in another state.
It was the burden of the state, first, to show the final convictions and then to identify the appellant as the convict.
To prove the prior convictions, the state introduced copies of the pleadings, judgments, and sentences which appear to bear the certificate of certain officers of the state of New Mexico. No witness testified as to the authenticity of those instruments or that *876the persons certifying thereto were in fact authorized to do so. The instruments were established solely and alone upon hearsay testimony and by force of their own allegations.
To identify the appellant as the alleged convict the state offered in evidence the ex parte certificate — not affidavit — of the warden of the penitentiary of the State of New Mexico, who attached to that certificate what he said was a photograph, fingerprint record, and commitment papers of Richard Thelton Davis, who he certified was “a person heretofore committed to said .penal institution and who served a term of imprisonment therein.” The warden further certified:
“ * * * j jjav.e compared the foregoing and attached copies with their respective originals now on file in my office and each thereof contains, and is, a full, true and correct transcript and copy from its said original.”
Not one witness testified that the photograph and fingerprint records were, in fact, those of the appellant in this case.
All that the warden of the penitentiary certified was that the instruments to which he certified were on file in his office.
With the fingerprint record, the state produced a witness who testified that from a comparison of the known fingerprint of the appellant with the copy certified by the warden he was able to say that the certified copy was a copy of a fingerprint that had been made by the appellant.
Thus, by the rankest sort of hearsay testimony, this appellant is condemned to life imprisonment in the state penitentiary when without that hearsay testimony such punishment could not have been inflicted.
I am reminded of a decision of the Supreme Court of the United States delivered March 2, 1959, in the case of People of State of New York v. O’Neill, 79 S.Ct. 564, 565. In that case, the validity of a Florida statute, F.S.A. §§ 942.01 to 942.06, was sustained which was entitled “Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings.” That statute provides a procedure whereby witnesses found or residing in one state may be extradited or required to be present as a witness in a court of another state. In the opinion it is pointed out that such statute operates only between states which have enacted it or similar legislation to compel witnesses to travel or to testify in sister states.
In 1951, Texas enacted the “Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings,” appearing as Art. 486a, Vernon’s Ann.C.C.P.
If this appellant’s prior convictions and identity can be lawfully shown as was here done, then any other material fact in a criminal case may be shown by hearsay testimony, also.
Thus is the right to be confronted by the witnesses against him no longer guaranteed to one upon trial in this state for his life and liberty.
I respectfully dissent.